THE LAW THAT CHANGES

Since 19 May 2022, a Royal Decree of 24 April 2022 has amended Article 39 of the Royal Decree of 30 March 1967 determining the general terms and conditions for the implementation of the laws relating to annual holidays for salaried workers. From now on, for employees whose remuneration is only partially variable, only a sectoral collective labour agreement may allow derogation from the provisions of Article 39 relating to the method of calculating holiday pay for the variable part of the remuneration. Previously, such a derogation was possible through a collective labour agreement concluded at company level.

SOCIAL JURISPRUDENCE READ FOR YOU

In a judgment of 25 January 2022 (R.G. no. 2019/AB/657), the Brussels Labour Court was seized of requests for payment of the protection allowance due to maternity provided for in Article 40 of the Law of 16 March 1971 and for payment of the protection allowance due to discrimination pursuant to the Law of 10 May 2007.

It found that the reasons for dismissal related to economic needs put forward by the company were not established and therefore did not justify the dismissal, so that the maternity protection allowance was due.

The Court also found that the facts gave rise to a presumption that the reason for the dismissal was pregnancy, since an interview with the employer had taken place as soon as the medical certificate of pregnancy was communicated, and this interview had preceded the dismissal by five days. The worker could therefore claim the protective indemnity for discrimination.

However, the Court confirmed its jurisprudence that cumulation between maternity and discrimination allowances is only possible if there is a separate damage. It considered that cumulation was not possible since the damage suffered (stress on the one hand and a feeling of injustice on the other) is covered by the maternity allowance on the basis of Article 40 of the Act of 16 March 1971, the purpose of which is to protect pregnant women against the harmful consequences of dismissal for their physical and mental health.

For more information, please contact: Olivier Langlet (olivier.langlet@cew-law.be) and Sophie Poncin (sophie.poncin@cew-law.be), lawyers, CEW & Partners.